Aquinnah Deadlocks on Appeal of Tribal Sovereignty Decision

By JULIA WELLS

The Aquinnah selectmen announced this week that they are deadlocked
over whether to appeal a superior court ruling that found the Wampanoag
Tribe of Gay Head (Aquinnah) cannot be sued because of sovereign
immunity.

"We are unable to reach a decision on this matter," said
board chairman Michael Hebert following an executive session Tuesday
afternoon with town counsel Ronald H. Rappaport.

Mr. Hebert voted against the appeal, selectman James Newman voted
for it and selectman Carl Widdiss abstained.

The deadlock effectively means that the town will not appeal the
case, unless Mr. Hebert changes his position before Dec. 12, the
deadline for filing notice of appeal.

The ruling was made six months ago by the Hon. Richard Connon, and
this month he denied separate motions to reconsider the ruling, clearing
the way for a formal appeal. Judge Connon also denied a motion by the
Martha's Vineyard Commission to intervene in the case.

Two other parties in the case - the Benton Family Trust, which
represents a group of abutters, and the Gay Head Taxpayers Association
- have said they will appeal.

But the absence of the town leaves a peculiar hole in a much-watched
land-use case that has potentially far-reaching implications for every
town on the Vineyard.

"As a legal matter I don't think it really changes the
analysis - and I do not pretend to speak for the selectmen -
but by deciding not to appeal they have decided to accept a ruling which
could have consequences in future years that at least I am not smart
enough to anticipate," said James Quarles 3rd, a partner at Hale
and Dorr who represents the taxpayer group.

Mr. Quarles was the attorney for the taxpayers when a 1983 Indian
land claims settlement agreement was approved by the town and the tribe.
The agreement was ratified by the state and federal government and later
led to federal recognition for the tribe. The Wampanoags are the only
federally recognized tribe in Massachusetts.

Under the terms of the settlement agreement the tribe agreed to
abide by state and local zoning rules.

And this is the issue that lies at the heart of the case today: Is
the tribe obligated to comply with zoning under the terms of the
settlement?

In short form, Judge Connon found that sovereign immunity trumps the
terms of the settlement agreement.

The case is expected to be taken by the state Supreme Judicial Court
for appellate review.

The dispute began in March of 2001 when the tribe built a small shed
and a pier at the tribal shellfish hatchery without obtaining a permit.
The hatchery is located on the Cook lands fronting Menemsha Pond in
Aquinnah, one of four land areas conveyed from the town to the tribe
under the terms of the settlement agreement.

Two months later the town went to court to compel the tribe to
comply with zoning rules.

Judge Connon found that sovereign immunity trumps all, despite a
long list of contradictions.

On Tuesday this week two of the three Aquinnah selectmen briefly
explained their positions.

"I thought it was time to bring this litigation to an end, and
I thought Judge Connon looked at it closely and he really didn't
find anything new," Mr. Hebert said. The town had joined the
recent motion to reconsider.

"I feel that now it's time for the town and the tribe to
put aside their differences and try and work together," Mr. Hebert
said.

Mr. Newman had another view.

"I agree that we want to put this thing to bed, but I felt
that first we had to go to the last place and find out the final
outcome," he said.

Mr. Widdiss is a member of the tribe and he had no comment about his
position, except to say that he abstained.

Mr. Rappaport had no comment, but the selectmen praised the work
done by town counsel on the case.

"I think Ron did an excellent job. I think he argued the case
eloquently and I know he feels very strongly about the importance of
this case to the town and the Vineyard," Mr. Hebert said.

Mr. Quarles said the outcome of the case will have an impact on many
future generations.

"I can imagine someone making a decision that a shellfish
shack is not worth fighting over - but if you don't appeal
this ruling you have made a decision that there is no ruling that is
worth fighting over. What you are doing is saying that there is no fight
down the road that is worth having.

"And how this is going to operate in the year 2012, we just
can't say," he concluded.